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Pilot Counsel:

Who are the 'bad' guys?

April 1, 2012

ByJohn S. Yodice

There is nothing unusual about a fatal air crash resulting in litigation, with charges and countercharges alleging negligence on the part of pilots, air traffic controllers, manufacturers, and others. It's a sign of the litigious society in which we live. The stakes are high. Monetary recoveries are in the millions of dollars. To get there, though, the litigation involves painstaking reconstruction of the facts, and ends up pointing the accusatory finger at the “bad” people responsible for the crash. What is unusual, in this case, is the court’s expressed insight that the actors, though negligent and culpable, are not really “bad” in the moral sense. The judge puts the “badness” in a context that is obvious but seldom expressed.

A pilot was killed when his 1978 Cessna Skymaster crashed after encountering severe weather conditions. The representatives of the deceased pilot filed suit against the FAA alleging that the air traffic controllers were negligent in the handling of the flight, causing the death.

The FAA denied liability, saying the accident was caused by the pilot’s own failures. Furthermore, even if the controllers were negligent, the pilot’s own negligence significantly contributed to the cause of the accident. The FAA alleged that the pilot failed to avoid known weather conditions despite having received many warnings about the presence of thunderstorms along his intended route of flight—and despite his known ability to see and become aware of those conditions onboard his aircraft. The FAA further said that once the pilot encountered convective activity within a thunderstorm, he failed to properly fly and control his aircraft, resulting in its loss and the pilot’s death. The FAA asserted that the pilot violated FAA regulations by operating in conditions that he was not authorized or prepared to handle.

At the conclusion of a trial before a federal court in Texas, the trial judge ruled on the case. After hearing the evidence, the judge found that the pilot was 60-percent responsible for the accident, and that the FAA was responsible to the extent of 40 percent. The judge awarded more than $4 million in damages to the estate of the pilot, apportioned according to the comparative negligence of the parties.

The pilot in this case was a successful business executive and entrepreneur, with a love of flying. He was an experienced instrument-rated pilot with more than 1,400 hours of flight time in various types of general aviation aircraft. On the day of the accident he was flying his company’s Skymaster. The Skymaster was equipped with a Stormscope but not airborne weather radar.

The pilot filed an IFR flight plan from Boca Raton, Florida, to Myrtle Beach, South Carolina, picking up his IFR clearance after becoming airborne. When he departed at 2:30 p.m. local time, he was aware of a sigmet for a line of thunderstorms along his route of flight. The actual weather at the time of his departure was a thunderstorm cell over Martin County, Florida—where the accident occurred—that was expanding in size and intensity. By the time the flight reached the area, weather radar showed that it had approached and entered an area of Level 5 (“intense” weather with severe turbulence) and borderline Level 6 echoes (“extreme” weather with severe turbulence). Weather avoidance was a continuing activity throughout the flight. There was a lot of interaction between ATC and the pilot trying to deal with the weather.

On the evidence, the judge found the pilot negligent as essentially alleged by the FAA, responsible to the extent of 60 percent.

By the same token, the judge had little trouble in finding ATC 40-percent responsible. The judge summed up the controllers’ negligence by saying: “With knowledge that [the pilot] was flying IFR in a small plane with limited weather capability, this controller failed to provide sufficient accurate weather information to allow [the pilot] to make informed decisions when requesting deviations. The weather was severe enough that the controller knew or should have known that he needed to issue complete weather information, as required by the Air Traffic Control Manual…. Compounding that breach of the duty of care, he then failed to provide any navigation assistance when the pilot requested.”

What is interesting and unusual is the insightful part of the judge’s decision. The judge noted “that neither the air traffic controllers nor [the pilot] were bad actors in this tragic accident. Throughout the history of manned flight weather has proven to be the greatest obstacle to safe human flight. History shows us that a pilot’s greatest enemy, more often than not, is nature’s challenges. The effects of thunderstorms, snow, icing, fog, and other inherent risks of nature repeatedly fill reports of air crash investigations all over the world. That risk can be ameliorated, of course, and every pilot is trained to understand and prepare for that risk. Air traffic controllers are trained to help them. But no matter how much we try, we will never be able to eliminate those risks entirely unless we choose to abandon flight altogether.” We’ve not seen that in a court decision before.

Legal counselor John S. Yodice is a commercial pilot and flight instructor who owns and flies a Cessna 310.

Mark Scheuer was tired of yelling at his wife across the noisy cockpit of their Grumman Yankee, and he thought there had to be a better way of communicating. PS Engineering Inc. was born out of that necessity and is now celebrating its third decade of forging new ground in cockpit communication technology.